The defendant held under an application of Oliver Kilgore, dated 3d March 1767, a survey thereon by Samuel Lyon, deputy surveyor, made 4th September 1788, and a patent to Gabriel Glen, dated 13th November 1788, which took in the lands in question.

The defendant offered in evidence the decision of the board of property, made 24th November 1766, on a caveat filed against the plaintiff's survey, by the aforesaid Thomas Calhoon, in behalf of the devisees of the said John Calhoon, in the lifetime of the aforesaid John Dunning, wherein the survey of Armstrong was rejected.

This was objected to, because it did not relate to the lands now in controversy, and was between other parties. A record in such a case would be no evidence. It is no argument to say that it is regularly certified under seal; it must be pertinent to the point in issue.

But the court directed it to be read; valeat quantum valer potest. It is the act of the proper office respecting the survey under which the lessors of the plaintiff claim; but the effect of it must certainly be confined to the devisees of John Calhoon and those claiming under him. Verdict for the plaintiff.

Messrs. Duncan and Watt, pro quer.
Messrs. Hamilton and M'Gihen, pro def.

AT NISIS PRIUS, AT LEWISTOWN, MAY ASSIZES, 1796.

CORAM, SHIPPEN AND YEATES, JUSTICES.

LESSEE of WILLIAM WILSON against ENOCH M'VEAGH.

Recital in a sheriff's deed no evidence of his authority to sell lands, unless the judg. ment is produced, and also the executions since the 26th March 1785.

Ejectment for 71 acres and 115 perches of land in Wayne township.

The plaintiff claimed the lands in question under two several sheriff's sales, but did not produce in evidence any extract of the judgments and executions on which the sales were had.

Mr. Hamilton for the defendant moved for a nonsuit.

Mr Watt for the plaintiff argued, that the sheriff was empowered by law to convey the same right as the debtor had, and that his sale vested the title in the purchaser. (Prov. Laws, 9, 59.) By the act of 26th March 1785, (2 Dall. St. Laws, 283, § 7,) no sheriff's deed is to be avoided for want of producing the executions and returns thereon, or for want of proof of due notice of the sale, or of the deed not being recorded.

By the court. We cannot avoid nonsuiting the plaintiff, unless he produces an exemplification or abstract of the records. The judgments and executions are the authority under which the sheriff acted, and the consequences of asserting the doctrine, that a sheriff by his recital could deduce a power to sell lands, would be highly mischievous. The law of 1785 has only a retrospective view, and extends solely to sheriff's deeds theretofore made, where peaceable possession had accompanied them for six years; now here one of the sheriff's deeds is dated 22d January 1766, but the other on the 24th July 1790; and this law strongly proves the necessity of legislative interference to cure the defect of executions or an inquisition, where possession has gone with the deed; but it does not go so far as to supersede the necessity of showing a judgment in evidence. This still remains necessary to be proved, and cannot be dispensed with. Vide Runn. Eject. 117. Gilb. Law of Evid. by. Lofft, 10, 11.

Plaintiff nonsuit.

AT NISI PRIUS, AT HUNTINGDON, MAY ASSIZES,

1796.

CORAM, SHIPPEN AND YEATES, JUSTICES.

Lessee of HENRY DRINKER against WILLIAM HOLLIDAY, junior.

Declarations of the surveyor general no evidence as to the return of a survey.
General rules respecting warrants, locations and surveys laid down.

EJECTMENT for 326 acres of land in Frankstown township. The plaintiff claimed under a warrant to Samuel Litton, dated 1st August 1766, a survey thereon by Richard Tea, on the 15th

June 1767, a deed from Litton to Samuel Wallis, dated 30th September 1766, a patent to Wallis, dated 28th February 1782, a conveyance from Samuel Wallis and wife to Abel James, and the lessor of the plaintiff, dated 4th September 1782, and a release from James to him on the 8th April 1784.

The defence was grounded on a location, (as it is called,) in the name of Timothy M'Kinley, dated 3d March 1763, a survey thereon by Richard Tea, on the 18th March 1765, and an additional survey made by Thomas Smith, esq. on the 2d December 1774, founded on a direction to him by the surveyor general, indorsed on a warrant to M'Kinley, dated the same 3d March 1763, in these words; "It is supposed that the land for which this warrant was granted, interferes with prior warrants. Execute this warrant on the land left out by prior warrants, and make return into my office."

This latter survey included the lands now in controversy, but it appeared by Mr. Smith's deposition, that he did not at the time of making his survey, know that the survey before made by Tea under the location had been laid elsewhere, or that the small addition which he then made had been regularly surveyed before to another.

The declarations of the surveyor general, as to the return of the survey made for Wallis, were offered to show what passed at the time; but the court overruled them. His certificate of official papers is good evidence, but any independent fact must be established by his testimony like any other witness. This point has been in effect ruled before in this country, May assizes 1793, in the case of Nesbit's lessee v. Titus et al.

The following general doctrine, after the counsel had gone through their arguments, was delivered in charge to the jury.

Much will depend on a party's pursuing his pretensions on a warrant or location with due diligence; where he is guilty of delay and laches, his claim to particular lands, which he might otherwise secure, shall be postponed to a subsequent warrant and survey, aided by vigilance and industry.

When a survey has been made, which is supposed to be injurious to another claimant, he ought to file his caveat, or institute his suit in a reasonable time, or account satisfactorily for his neglect. Failing herein he shall suffer for his negligence, and particularly so where his adversary has proceeded to complete his legal title, or bestowed considerable labor in improvements.

Every survey will be presumed to be made by the consent of the applicant, unless the contrary appears, and where his dissent

does appear, he must make an early complaint to the surveyor general, or in his default, to the Board of Property. If he is remiss herein, his negligence will operate strongly against him, and under many circumstances he will be supposed to have abandoned his objections to the survey.

When a survey has been completed on the ground, a new survey cannot be made without new directions, because the authority of the deputy surveyor has been determined. When such fresh powers have been given, no additional survey shall affect a fair and honest survey prior thereto, though made on a subsequent warrant or location. The intervening right shall be protected. The consequence of squeezing out titles obtained bona fide,after the claim of an early warrant has been satisfied, by opening the lines already closed, are highly injurious to society, and the measure is unjust in itself.

It is the duty of a deputy surveyor to return the survey made by him to the proper office. His default herein shall not be imputed to the person in whose favor the survey has been made. The latter depends on the actual lines run on the ground, which in fact constitute the survey. The field notes, draft or return are mere evidences of it.

These are general rules respecting warrants, locations and surveys. Like all general rules, they may admit of some exceptions under special cirumstances.

Verdict for the plaintiff.

Messrs. Cadwalader, and Walker, pro quer.
Messrs. Hamilton and Woods, pro def.

[Note, the same general outlines in effect were given in charge at the same assizes, between the lessee of John Hollinshead and Thomas Pollack, and the jury found accordingly.]

Lessee of ROBERT STEWARD against WILLIAM RICHARDSON

One who is a principal in a contract shall not be a witness to establish it. But where it appears that he acted as an agent, his testimony shall be received.

Where one has sold the same lands to different persons, his expressions before the second sale are evidence against the second vendee; aliter of his declarations of what passed between him and such second vendee.

Every concealment will not avoid a contract, where the party ought to know the particular fact.

EJECTMENT for 481 acres of land, in Franklin township.

It was admitted, that Richard Neave, sen. and Richard Neave, jun. were seized of the lands in question.

The plaintiff made title under them, by a regular conveyance made 31s August 1793, in consideration of 4817.

The defendant claimed under a receipt from them to his son John Richardson, dated 19th August 1793, (twelve days previous to the plaintiff's deed,) for 18/ 15s. on account of the first payment of a tract of land on Little Juniata, between Sandham's claim and land occupied by widow Ramsay, containing 393 acres, for which they agreed to make a good title, on Sandham's claim being settled. But if out of their power to make a title, then they promised to repay him. the 187. 15s. on demand. The Neaves' also wrote a letter to the defendant, dated 17th August 1793, wherein they impowered him to retain possession of the tract of 3931 acres, adjoining Mathias Sandham on the south west, and other lands belonging to them on the north west, and to prevent waste committed by Robert Steward (the plaintiff,) and acknowledged the receipt of 187. 15s. on account thereof, by his son John.

The fact in contest was, whether the Neaves contracted to sell the lands in question to the defendant, or another tract containing 393 acres, adjoining thereto. Two of the discriptions in the receipt, viz. Sandham's claim and Ramsay's land, exactly corresponded with the tract for which the ejectment was brought, but the 393 acres agreed with the quantity contained in the adjoining tract. Both plaintiff and defendant had, previous to their purchase, a divided possession of the lands in controversy; and the defendant had paid the taxes of them, before he contracted, for the preceding year.

It was contended, that the defendant had been guilty of misrepresentation and deception on the Neaves, who were imprisoned for debt in the gaol of the city of Philadelphia, at the time of writing the etter and giving the receipt.

John Richardson, to whom the receipt was given, was offered as a witness for the defendant, but was excepted to, on the ground of his being a principal in the contract, and the engagement for a good title being made to him.

Pro curiam. Independent of Neave's letter, he perhaps could not be admitted. But taking both papers together, it appears, that he was considered merely as an agent of his father, and that the contract was made with him in that capacity; and therefore he is a competent witness. The jury will judge of his credibility.